✦ High Court of India · 09 Jun 2025

High Court · 2025

Case Details High Court of India · 09 Jun 2025

Court

High Court of India

Decided

09 Jun 2025

Bench

M SUNDAR

Length

1,457 words

Acts & Sections

Constitution of India Tamil Nadu Highways Act 2001

W.P.No.20332 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MR.JUSTICE P.DHANABALW.P.No.20332 of 2025&W.M.P No.22915 of 2025Mrs.Chanma... PetitionerVs.1. The District Collector Office of the Collector Kancheepuram District, Kancheepuram2. The Commissioner Mangadu Municipality Mangadu, Chennai – 600 1223. The Chief Executive Engineer The Tamilnadu Highways Department II Floor, Integrated CEs' Office 76, Sardar Patel Road Guindy, Chennai – 600 0254. The Divisional Engineer (C and M) Kancheepuram Division Kancheepuram – 631 501Page Nos.1/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 20255. The Sub Divisional Engineer (C and M) Sriperumpudur Kancheepuram District – 602 1066. The Assistant Engineer (C and M) Kundrathur, Chennai – 600 069 ... RespondentsWrit Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certriorarified Mandamus to call for the records relating to order issued by the fifth respondent Thaakeed Notice No.243/U/dated 30.5.2025, quash the same and consequently direct the respondents to forbear all further proceedings of the respondents from initiating any coercive action of demolishing the petitioners' premises pursuant to the Thaakeed notice dated 30.05.2025 bearing Thaakeed Notice No.243/U/issued by fifth respondent herein under Sections 28(2)(i) and 29(1) of the Tamil Nadu Highways Act, 2001 pertaining to the petitioners' premises comprised in Natham Survey No.695, New Survey No.690/3 and 833, situated at Door Old No.9, New No.17, Main Road, Pattur Mangadu, Chennai – 600 122.For Petitioner : Ms.K.Zeenath ShariffaFor Respondents:Mr.T.K.SaravananAdditional Govt. Pleader for R1 to R6Page Nos.2/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 2025ORDER[Order of the Court was made by M.SUNDAR, J.,]Captioned main 'writ petition' [hereinafter 'WP' for the sake of brevity] has been filed inter alia assailing an 'order dated 30.05.2025 issued by R5 [Sub Divisional Engineer (Construction and Maintenance), Sriperumpudur, Kancheepuram District- 602 106]' (hereinafter 'impugned order' for the sake of brevity, convenience and clarity). 2. At the outset, it is worth pointing out that in the affidavit and prayer in the writ petition, reference of impugned order has been wrongly stated as Notice No.245/U instead of Notice No.243/U and further, the provisions under which impugned order has been made, have been wrongly stated as Sections 28(2) (i) and 29(1) of TN Highways Act instead of Sections 28(2)(ii) and 29(1) of TN Highways Act. Faced with this situation, Ms.K.Zeenath Shariffa, learned counsel on record for writ petitioner, requested this Court to read the reference of impugned order as 'Notice No.243/U' and provisions under which the impugned order has been issued as 'Sections 28(2)(ii) and 29(1) of TN Highways Act'. Considering the facts and circumstances of the case, as one off matter, this request is acceded to. Page Nos.3/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 2025Hence, this Court deems it appropriate to read the reference as 'Notice No.243/U' and provisions under which the impugned order has been made as 'Sections 28(2)(ii) and 29(1) of TN Highways Act' and accordingly, proceeds further on that basis.3.Ms.K.Zeenath Shariffa, learned counsel on record for writ petitioner, adverting to the impugned notice, submitted that the impugned notice has been issued under Section 28(2)(ii) and 29(1) of 'the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' (hereinafter 'said Act' for the sake of brevity) but it has not called upon the writ petitioner to show cause in seven days. On the contrary, it straightaway calls upon the writ petitioner to remove alleged encroachment within seven days, is learned counsel's say. 4.Issue notice.5.Mr.T.K.Saravanan, learned Additional Government Pleader, accepts notice for R1 to R6.Page Nos.4/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 20256.The scope of captioned main WP is substantially narrow, legal drill on hand is very limited and therefore, with the consent of learned counsel on both sides, main WP is taken up in the Admission Board i.e., Motion List.7.Before we proceed further, we deem it appropriate to extract and reproduce Section 28 of said Act in its entirety and the same reads as follows:'28.Prevention of encroachment – (1) The Highways Authority or any person authorised by it in this behalf shall, at such time as may be considered necessary, conduct such checks and periodical inspection of the highway boundaries, with the view to ensure the prevention of unauthorised encroachment and the removal of such encroachment.(2) The Highways authority or any person authorised by it in this behalf, may--(i)remove, without any notice, any movable temporary structure, enclosure, stall, booth, any article whatsoever hawked, exposed or displayed for sale or any other thing whatsoever by way of encroaching the highway or in any area where the construction or development of a highway is undertaken or Page Nos.5/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 2025proposed to be undertaken.(ii) remove any immovable structure, whether permanent or temporary in nature, encroaching the highway or in the area vested with Government under this Act, after issuing a show cause notice against such removal, returnable within a period of seven days from the date of receipt thereof:Provided that any representation received within the time limit shall be considered by the authority or officer concerned before passing final orders.'8.A careful perusal of Section 28 of said Act brings to light that we are concerned with Section 28(2)(ii) and the proviso thereat as this provision provides for an alleged encroacher being show caused before calling upon the alleged encroacher to remove the encroachment, if any. In the case on hand, without issuing a 'show cause notice' (hereinafter 'SCN' for the sake of brevity), the impugned notice issued by R5 directly states that in the event of failure of removal of encroachment by writ petitioner, encroachment will be removed by authorities concerned. Therefore, we are of the considered view that it would serve the ends of justice if the impugned notice dated 30.05.2025 is directed to be treated as SCN and the writ petitioner is given an opportunity to send a representation (if so advised and if so desired) so that the authority or officer concerned can pass final orders Page Nos.6/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 2025considering the cause shown.9.In the light of the narrative, discussion and dispositive reasoning set out supra, following order is passed:i.The impugned notice dated 30.05.2025 issued by R5 shall now be treated as SCN;ii.Writ petitioner can now send a response to the SCN within seven days from today i.e., by 16.06.2025 (if so advised and if so desired);iii.If the writ petitioner sends such a representation, the same shall be considered on its own merits and in accordance with law by R5 and final orders shall be passed by R5 in accordance with the proviso to Section 28(2)(ii) of said Act;iv.If the writ petitioner does not send a representation within 7 days, it is open to the official Page Nos.7/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 2025respondents to proceed in accordance with law;v.Though obvious, we make it clear that any further coercive action qua removal of encroachment will be subject to / depending on final orders to be passed by R5 under proviso to Section 28(2)(ii) of TN Highways Act;vi.We also make it clear (though obvious) that we have not expressed any view or opinion on the merits of the matter and therefore, R5, while passing final orders, shall do so untrammeled by the observations made in this order; andvii.All the rights and contentions of noticees qua Section 28(2)(ii) of said Act are preserved for being canvassed before the authority concerned;viii. If the order made by authority concerned in the aforesaid manner is adverse to the writ petitioner, the same shall be kept in abeyance for a fortnight from the date of service of the order on the writ petitioner so as to provide a window to the writ petitioner to assail the said order (if Page Nos.8/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 2025permissible in law) or to seek judicial review of the order. If the writ petitioner does not do so within a fortnight from the date of service of the order, the order passed by authority concerned will be resuscitated and put into motion. If the order is in favour of the writ petitioner, that will be the curtains on the matter.9.Captioned WP stands disposed of with the aforementioned observations and directives in the aforesaid manner. Consequently, captioned writ miscellaneous petition thereat is disposed of as closed. There shall be no order as to costs.(M.S.,J.)(P.D.B.,J.) 09.06.2025(1/2)Index : Yes / NoNeutral Citation : Yes / NogpaPage Nos.9/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 2025To1. The District Collector Office of the Collector Kancheepuram District, Kancheepuram2. The Commissioner Mangadu Municipality Mangadu, Chennai – 600 1223. The Chief Executive Engineer The Tamilnadu Highways Department II Floor, Integrated Ces' Office 76, Sardar Patel Road Guindy, Chennai – 600 0254. The Divisional Engineer (C and M) Kancheepuram Division Kancheepuram – 631 5015. The Sub Divisional Engineer (C and M) Sriperumpudur Kancheepuram District – 602 1066. The Assistant Engineer (C and M) Kundrathur, Chennai – 600 069 Page Nos.10/11 https://www.mhc.tn.gov.in/judis W.P.No.20332 of 2025M.SUNDAR, J.,and P.DHANABAL, J.,gpaW.P.No.20332 of 202509.06.2025Page Nos.11/11

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